Beyond the Duck Blind

Published: March 15, 2004

Supreme Court arguments are only six weeks away in the Sierra Club's challenge to the secrecy surrounding Vice President Dick Cheney's energy task force and the formulation of the Bush administration's energy policy. And Justice Antonin Scalia, Mr. Cheney's duck-hunting buddy, still stubbornly resists stepping out of the case. To protect the Supreme Court's integrity and legitimacy — and honor the rule of law — the final choice can no longer be left to Justice Scalia alone. Unless he suddenly reverses himself, the Supreme Court as a whole has a duty to intervene, much as it reviews the recusal decisions of lower-court judges.

As late-night comedians have embarrassingly noted, again and again, Justice Scalia went duck hunting with Mr. Cheney, and accepted free rides on Air Force Two for himself and his daughter, shortly after the Supreme Court agreed to hear the task-force case. Mr. Cheney had appealed a lower-court's order to reveal the names of some of the people who helped formulate President Bush's energy policies in 2001.

Extended private socializing between a litigant and a judge poised to hear his case triggers serious concerns, not least because it gives one side a chance to talk about the case without the opposite side present. Justice Scalia has said the case did not come up, which is reassuring but inadequate. Federal judges at all levels are legally mandated to disqualify themselves from cases in which their "impartiality might reasonably be questioned." This case plainly meets that standard. No matter how Justice Scalia might rule, his involvement would hurt the court's reputation.

When the Sierra Club moved formally for Justice Scalia's recusal, the court properly referred the motion to him initially. The court has a practice of letting individual justices handle their own recusal issues and Chief Justice William Rehnquist and the other justices probably do not relish second-guessing Justice Scalia's personal contacts. But Justice Scalia has had time to do the proper thing, and his eight colleagues now need to render an institutional judgment on the widely expressed concern about his impartiality.

The swelling controversy has exposed other less egregious but still troubling outside activities by Justice Scalia. The Los Angeles Times recently reported that he delivered a speech to a $150-a-plate dinner of an anti-gay advocacy group in Philadelphia even as the Supreme Court was deliberating in the Texas sodomy case last year.

This problem is not Justice Scalia's alone. On the other side of the court's ideological spectrum, as another L.A. Times article noted, Justice Ruth Bader Ginsburg maintains involvement in a lecture series named for her that is co-sponsored by New York City's bar association and the NOW Legal Defense and Education Fund, which frequently participates in Supreme Court cases. Justice Ginsburg is relatively circumspect in her public remarks, but it's still unwise for her to retain an ongoing affiliation with such an active advocacy and litigation group.

As the newly released papers of the late Justice Harry Blackmun demonstrated, Supreme Court justices are human beings with intellectual and personal strengths, foibles and frailties. They cannot be expected to live in a bubble, never speaking before bar organizations, for example, or expressing anything but the most innocuous personal views. Like the rest of the world, legal and judicial ethics are full of nuances. Everyone would benefit from an overall reappraisal of what kinds of actions are exemplary, borderline or unacceptable.

That said, Justice Scalia chose a terrible moment to go duck hunting with the vice president and ride on his airplane. That decision, and his refusal to recuse himself in the upcoming case, are clear examples of bad judgment that his colleagues on the court can no longer responsibly ignore.